Mossman v. Rowley

229 P.3d 812
Court of Appeals of Washington·Decided March 11, 2010·No. 27560-4-III·Published

Opinion

229 P.3d 812 (2009)
154 Wash.App. 735

Woodrow C. MOSSMAN and Alycia M. Mossman, husband and wife, Appellants,
v.
Joseph E. ROWLEY and Jane Doe Rowley, husband and wife, Respondents.

No. 27560-4-III.

Court of Appeals of Washington, Division 3.

December 10, 2009.
Publication Ordered March 11, 2010.

*814 John A. Bardelli, Attorney at Law, Spokane, WA, for Appellants.

Michael Louis Wolfe, Randall & Danskin PS, Spokane, WA, for Respondents.

KULIK, A.C.J.

¶ 1 Alicia Mossman[1] drove south on Monroe Street in Spokane, Washington, and attempted to turn left onto Columbia Street. Joseph Rowley was driving in excess of the speed limit, north on Monroe. Mr. Rowley collided with Ms. Mossman's vehicle as she turned left. The trial court granted Mr. Rowley's motion for summary judgment. Ms. Mossman appeals. Because Mr. Rowley was the favored driver and the disfavored driver — Ms. Mossman — must yield to him, we affirm the trial court.

FACTS

¶ 2 On November 13, 2004, two vehicles driven by Alicia Mossman and Joseph Rowley collided at the intersection of Monroe Street and Columbia Street in Spokane, Washington.

¶ 3 At this intersection, Monroe is a four-lane street. On the night of the collision, Ms. Mossman arrived at the intersection of Monroe and Columbia around 7:10 p.m. in her Toyota sport utility vehicle (SUV). She was driving south on Monroe intending to turn left (east) onto Columbia. Ms. Mossman stated in her deposition that she saw a truck driving toward her (north) on Monroe. The truck was about one block away, so she turned. The truck hit Ms. Mossman's vehicle on the back portion of the passenger side.

¶ 4 Prior to the collision, Mr. Rowley picked up William Geiger and Ben Fazio from Rick's Ringside tavern. Mr. Rowley stated in his deposition that he had not been drinking. The police report states that Mr. Rowley reported drinking two beers at home and that he was driving because he was the most sober of the drivers.

¶ 5 Mr. Rowley was driving north on Monroe toward Columbia in the lane closest to the center of the road. The speed limit at the point of collision was 30 m.p.h. It is undisputed that Mr. Rowley was speeding. Mr. Rowley stated that he was going 45 m.p.h. The police report states that Mr. Rowley reported going 60 m.p.h. Crystal Rice, a witness, stated he was going 60 to 70 m.p.h. F. Denman Lee, a collision reconstruction expert, estimated Mr. Rowley's speed to be about 60 m.p.h.

¶ 6 Mr. Rowley stated that he saw Ms. Mossman's vehicle approaching him from north on Monroe. He saw that the vehicle's turn signal was on. Mr. Rowley stated that Ms. Mossman started to make the left turn, then hesitated halfway and, at the last second, darted out onto the road. The front of Mr. Rowley's truck hit the back passenger side of Ms. Mossman's SUV while both vehicles *815 were in the left lane of the northbound lanes of Monroe.

¶ 7 After the collision, Mr. Rowley and Mr. Geiger were unharmed and fled from the scene. Mr. Fazio did not flee. He received a leg injury as a result of the collision. Ms. Mossman experienced pain in her chest and ribs. She was treated at Holy Family Hospital and released. Mr. Geiger returned to the scene after fleeing, and Mr. Rowley turned himself in a few hours later.

¶ 8 Ms. Mossman filed suit on October 8, 2007. Mr. Rowley served his first set of discovery requests by mail on October 24, 2007. Ms. Mossman did not reply and Mr. Rowley filed a motion to compel on January 11, 2008.

¶ 9 The court issued a case scheduling order on January 11, 2008, including the following dates: April 7 deadline for plaintiffs to disclose lay and expert witnesses, August 29 deadline for discovery, and a trial date of November 3.

¶ 10 Mr. Rowley and Ms. Mossman were deposed on April 1. Mr. Rowley filed a motion for summary judgment on July 22, and a hearing date was scheduled for August 22. On August 11, Ms. Mossman filed an opposition memorandum to Mr. Rowley's motion for summary judgment, arguing that Mr. Rowley had caused the accident by speeding. On August 18, Ms. Mossman served her disclosure of lay and expert witnesses.

¶ 11 At the August 22 hearing, the court granted Ms. Mossman's motion to continue and the hearing was rescheduled for September 19. The court stated that any additional materials were due from Ms. Mossman by September 5 and from Mr. Rowley by September 12. The court reserved ruling on the motion to continue the trial.

¶ 12 Ms. Mossman filed the declaration of Mr. Lee, a collision reconstruction expert, on September 5. Mr. Lee stated that if Mr. Rowley had not been speeding, Ms. Mossman would have been able to make her turn in complete safety.

¶ 13 On September 17, Ms. Mossman filed a second motion to continue the summary judgment hearing as well as to shorten time, to enlarge time to respond, to reopen discovery, to allow Ms. Mossman to add to her witness list, and to continue the trial. In Ms. Mossman's supporting affidavit, she stated that she (through her attorney) contacted the Spokane City Attorney's Office and they informed her that Mr. Rowley had pleaded guilty to reckless driving. Ms. Mossman also learned that her copy of the Washington State Collision Report was incomplete and that the City of Spokane Police Department had completed a total reconstruction of the accident in the absent part of the report.[2] Ms. Mossman's affidavit referred to her attempts to locate Mr. Geiger and the importance of his statements to the case. The affidavit also mentioned Ms. Rice, who witnessed the accident. Ms. Mossman's counsel told the court that Ms. Rice was not known to exist as a witness by either party and was first discovered within the September 4 to September 8, 2008 time frame.

¶ 14 On September 18, the court continued the summary judgment hearing, but denied the motion to continue the trial. The court set the new summary judgment hearing date for October 2, and Ms. Mossman was instructed to file any additional affidavits by 1:30 p.m. on September 26. The court ruled that it would accept affidavits, but would not permit any further depositions.

¶ 15 On September 30, Ms. Mossman submitted Ms. Rice's declaration. On October 1, Mr. Rowley filed a motion to strike, arguing Ms. Rice's declaration was untimely.

¶ 16 On October 2, the court granted Mr. Rowley's motion to strike Ms. Rice's declaration as untimely, noting that Ms. Rice's identity and address had been a matter of public record for years. The court ran out of time to hear argument on the summary judgment, and the hearing was continued until October 10. On October 10, the court granted Mr. Rowley's motion for summary judgment. Costs were awarded to Mr. Rowley.

¶ 17 Ms. Mossman appeals arguing the trial court erred by: (1) granting Mr. Rowley's motion for summary judgment, (2) denying her a continuance of the summary *816 judgment hearing, (3) striking Ms. Rice's declaration, and (4) awarding costs to Mr. Rowley.

ANALYSIS

¶ 18 Summary judgment will be sustained upon review if there are no issues of material fact when viewing the evidence in the light most favorable to the nonmoving party. Summary judgment is revie

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